Central Administrative Tribunal - Delhi
Ravinder Kumar Mirg vs Union Of India Through on 18 March, 2015
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.513/2014 Order reserved on 13.02.2015 Order pronounced on ___.03.2015 Honble Mr. G George Paracken, Member (J) Ravinder Kumar Mirg 131, Punjabi Colony Narela, Delhi-40. Applicant (By: Applicant in person) Versus
1. Union of India through the Secretary, Department of Revenue Ministry of Finance, Govt. of India North Block, New Delhi.
2. The Commissioner of Income Tax Delhi-IX, Praty Aksh Kar Bhawan E-2 Block, Civic Centre, N. Delhi Respondents (By Advocate:Shri Hanu Bhaskar) Order The claim of the applicant in this OA is to pay him the arrears of subsistence allowance for the period from 01.08.2009 to 26.11.2013 and arrears of the enhanced allowance @ 75% of pay for the period from 22.06.2004 to 31.07.2009 with compound interest at 15% p.m. He has also claimed cost of litigation.
2. The facts in this case are not in dispute. The applicant while working as an Inspector of Income Tax, he was arrested by the CBI in a criminal case on 07.09.1994 and placed under deemed suspension from the same date. He was reinstated in service w.e.f.07.02.2003. As he was convicted in the said case on 22.03.2004 and sentenced on 25.03.2004, he was placed under suspension on 22.03.2004. Later on, he was dismissed from service on 31.07.2009. on 12.10.2010, Respondent No.2 passed order under FR 53(1) for enhancing the Applicants subsistence allowance to 75% of pay for the period from 22.06.2004 to 31.07.2009, holding that no delay was attributable to him for prolongation of his suspension. The said order was, however, recalled/cancelled soon without affording the Applicant any opportunity of hearing. The High Court of Delhi vide order dated 07.09.2012 set aside the said order of dismissal order dated 31.07.2009 with the direction to treat him under continued suspension. On 20.09.2012 the Applicant again requested the Respondent No.2 for enhancing his subsistence allowance to 75% of pay w.e.f. 22.06.2004 as his suspension had been prolonged for no reason attributable to him. On 27.09.2012 the Respondent No.2 again enhanced his subsistence allowance to 75% under FR 53(1) w.e.f. 22.06.2004 holding his suspension was prolonged for no reason attributable to him. Thereafter, the Respondent No.2 drew the amount of subsistence allowance, from the treasury for 22.06.2004 to 31.07.2009 (difference on account of enhancement from 50% to 75% of pay) and for 01.-08.2009 to 28.09.2012 (75% of pay) in the shape of a cheque got made in the name of the Applicant. However, he was again dismissed w.e.f. 28.09.2012. On 15.05.2013, the Appellate Authority set aside the dismissal order with the direction to the Disciplinary Authority to pass a fresh order. He was again dismissed from service on 26.11.2013. for the period of suspension from 28.09.2012 to 15.05.2013 and from 16.05.2013 to 26.11.2013 also, he was not paid any subsistence allowance. Meanwhile, he made a representation to the Respondents on 10.06.2013 to release the entire subsistence allowance at enhanced rate with interest. As no action was taken in the matter, he sent another representation on 16.09.2013 stating that during his suspension period from 22-03-2004 to 31-07-2009, as per the order of the then C. I .T., he was paid subsistence allowance @50% of pay but later vide order dated 27.09.2012, it was enhanced to 75% of pay with the observations that the period of his suspension had been prolonged for reasons not directly attributable to him. He has, therefore, stated that the respondents have deprived him of higher rate of subsistence allowance for all those years and, therefore, he shall be compensated by way of interest on the delayed part of subsistence allowance. He has stated that the arrears of the difference of subsistence allowance for the aforesaid period had in fact been drawn from the Consolidated Fund of India but the same was not disbursed to him as yet. According to him, during the period of his suspension, he was not engaged in any business, profession or vocation etc. and the subsistence allowance paid to him was hardly enough to take care of the financial needs of his family.
3. In this regard, he has relied upon G.I., M.F., O.M. No. F. 1: (2)-E. IV (A)/63-III, dated the 29th August, 1963 wherein it was stated that Government servant in whose case, the order of suspension is deemed to have been continued in force or who is deemed to have been placed under suspension from the date of original order of dismissal/removal /compulsory retirement from service under Rule 10(3) or (10)(4) of Central Civil Services (Classification, Control and Appeal) Rules, 1965, he is to be paid subsistence and other allowances under FR 53 with retrospective effect from the date of order of such dismissal/removal/ compulsory retirement. It is necessary to invoke the law of limitation while paying the arrears of subsistence and other allowances in such a case.
4. He has also submitted that the disciplinary authority proceeded with the enquiry ex parte notwithstanding the fact that the Government servant concerned had specifically pleaded his inability to attend the enquiry on account of financial difficulties caused by non-payment of subsistence allowance. In this regard, he has relied upon the judgment of the Supreme Court in the case of Ghanshyam Das Srivastava v. State of Madhya Pradesh (AIR 1973 Sc 1183) wherein it has been observed that where a Government servant under suspension pleaded his inability to attend the enquiry on account of financial stringency caused by the non-payment of subsistence allowance to him, the proceedings conducted against him ex parte would be in violation of the provisions of Article 311 (2) of the Constitution as the person concerned did not receive a reasonable opportunity of defending himself in the disciplinary proceedings. The Court had also held that holding the enquiry ex-parte under such circumstances would be violative of Article 311 (2) of the Constitution on account of denial of reasonable opportunity of defence. The said point was also to be kept in view before invoking the provisions of Rule 14 (20) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Again the Supreme Court in the said judgment has held that if a Government servant under suspension pleads his inability to attend the disciplinary proceedings on account of non-payment of subsistence allowance, the enquiry conducted against him, ex parte, could be construed as denial of reasonable opportunity of defending himself and, therefore, after a Government servant is placed under suspension, prompt steps should be taken to ensure that immediate action is taken under FR 53, for payment of subsistence allowance without delay and regularly. In cases where recourse to ex parte proceedings become necessary, it should be checked up and confirmed that the Government servant's inability to attend the enquiry is not because of non-payment of subsistence allowance. He has also relied upon the Order of the co-ordinate Bench of this Tribunal in OA No.1793/2008 Sh. M.D. Gupta v. Secretary, Department of Revenue and Ors. decided on 16.02.2008. The operative part of the said order reads as under:-
9. I have heard both the counsel and perused the pleadings. In order dated 16.9.2008 respondents have explained that applicant was arrested from the office premises on 21.6.2005. Accordingly, he was suspended vide order dated 2.8.20005 w.e.f. 21.6.2005. Review was carried out on 16.9.2005 and subsequently also, but each time it was decided to maintain status quo because CBI has framed and filed the charge-sheet in court on 29.6.2006 under Section 120-B IPC and Section 7 and 13 (2) read with 13 (1)(d) of P.C. Act. It has been enhanced in 2008 keeping in view his request. They have also stated it is not admissible to revise subsistence allowance with retrospective effect.
10. It seems while denying retrospective enhancement of subsistence allowance respondents have not read full instructions and have read only one part of the OM. The full OM dated 13.9.1974 reads as under:-
(e) Retrospective revision- Government do not consider it advisable that any orders revising the subsistence allowance should be given retrospective effect.
The above is merely an advice of caution intended to serve as a guideline to the authorities ordering variation in subsistence allowance who are supposed to initiate action in all cases in sufficient time so that the requisite order can take effect as soon as the suspended officer completes six (now three) months under suspension. Obviously the clarification above cannot override the power conferred by the statutory provisions of FR 53. In case an order for variation of subsistence allowance under FR 53 is passed by the competent (disciplinary or appellate) authority after quite some time from the expiry of the requisite six (now three) months and that authority is satisfied that the variation has got to be given retrospective effect for reasons to be recorded in writing and orders accordingly, the same would be valid and binding on all concerned.
{GI, MF, OM No.F.19(4)-E.IV/55, dated the 17th June, 1958 and OM No.1(1)-E.IV (A)/74, dated the 13th September, 1974}.
11. Perusal of this para makes it clear there is no bar in enhancing the subsistence allowance with retrospective effect. It is only an advice or caution to the authorities to take action in time otherwise it is categorically stated that if authority is satisfied that subsistence allowance should he enhanced with retrospective effect, the said action would be valid, therefore, the reasoning given in order dated 16.9.2008 is not sustainable. Even otherwise it has already been held by the Division Bench of Tribunal in the case of H.S. Ramakrishna Vs. the Commissioner of Central Excise and Another that if the reason of prolonging suspension is not directly attributable to the Government employee, subsistence allowance should be enhanced. It cannot be denied looking at the nature of charge.
12. In the present case also it is not the case of respondents that delay in concluding the case was directly attributable to the applicant. On the contrary, in this case also respondents have stated, the subsistence allowance was not enhanced looking at the gravity of the charges. No orders were passed to this effect. It was only in 2008 that subsistence allowance has been enhanced looking at the hardship of applicant. This hardship would have been there earlier also. The case in hand is fully covered by the judgment mentioned above, which was given by a Division Bench, therefore, I am bound by it.
13. In view of above, order dated 16.9.2008 is quashed. Respondents are directed to pass fresh order for enhancement of subsistence allowance w.e.f. 21.9.2005. Of course applicant would have to submit the certificate that he was not engaged in any other employment/business/profession or vocation, as already directed. It is made clear applicant would not be entitled to any interest as he has himself come to the court after long delay.
14. OA stands disposed off with the above directions. No costs.
5. Further, he has relied upon the judgment of the Honble High Court of Delhi in WP(C) No.248/2013 R.D. Gupta v. UOI and Anr. decided on 16.01.2013. The relevant part of the said judgment reads as under:-
9. As regards direction No.(ii), we find that with reference to three orders dated May 14, 2004, August 06, 2004 and August 07, 2007, in paragraph 14 of its opinion, the Tribunal has already noted that the issue of subsistence allowance stood resolved inasmuch as the same had to be increased from 50% to 75% upon expiry of suspension exceeding three months, and for which we simply highlight that as per law unless delay at a departmental inquiry is held attributable to a Government servant, the subsistence allowance has to be increased. In the instant case we highlight that the question of the petitioner delaying the inquiry does not arise because no charge-sheet was ever issued. Thus, we see no reason why the Tribunal ought to have remanded the matter on the subject of subsistence allowance as per direction No.ii.
10. As regards directions No.(iii) and (iv), we see no reason why the Tribunal should not decide the matter as nothing warrants a remand. As regards direction No.v as to why interest should not be paid on amounts found to be wrongly withheld, we find no reasons given by the Tribunal.
11. Accordingly, we dispose of the writ petition substituting direction No.ii issued by the Tribunal with a mandamus to the respondents to release the subsistence allowance to the petitioner for the period he remained under suspension as per orders already passed on May 14, 2004, August 06, 2004 and August 07, 2007. The payment would be paid within four weeks from today together with simple interest @6% per annum from the dates the amounts were payable till payment is made. We restore OA No.2041/2009 for fresh adjudication by the Tribunal on the disputes pertaining to : (i) salary payable to the petitioner after the suspension order was revoked; (ii) petitioner's entitlement to receive pay in the revised pay-scales as per the recommendations of the 6th Central Pay Commission; and (iii) interest on delayed payments if any found to be payable.
12. Parties are directed to appear before the Registrar, Central Administrative Tribunal on February 11, 2013.
13. Copy of this order be supplied dasti to learned counsel for the parties and be sent to the Registrar, Central Administrative Tribunal through Special Messenger.
6. The Applicant has, therefore, argued that the Respondent was expected to make timely payment of subsistence allowance to him so that he was not put to any financial difficulties. Further, he submitted that, by its very nature, subsistence allowance is meant for the subsistence of a suspended Government servant and his family during the period he is not allowed to perform any duty and thereby earn a salary. The Applicant has, therefore, stated that the very long suspension period has left him financially shattered and as a result his wife has borrowed heavy amount from bank by pledging their ancestral house at a whopping rate of interest at 15% per annum. He has, therefore, requested to issue necessary directions to release the arrears of subsistence allowance for the period 22-03-2004 to 28-09-2012 in view of the cheque already prepared also to pay the subsistence allowance for the period beyond 28-09-2012 at the earliest. He has sought interest @15%.
7. The respondents have, however, rejected his aforesaid representation vide the impugned letter dated 28.01.2014 stating that the dismissal order was passed against him by the then Disciplinary Authority vide order No. No.CIT-IX/Vig/2008-09/1049 dated 31-07-2009. However, the Honble Delhi High Court, vide its order dated 07.09.2012 in WP(C) No.5559/2012 set aside his dismissal order dated 31-7-2009 and directed the department to pass another order under Rule 19 in his case while treating him under deemed suspension till passing of such an order. Thereafter, on 28-09-2012 the penalty of dismissal from service was again imposed up on him vide order No.CIT-IX/Vig/2012-13/1329 but he appealed against the said order and the Appellate authority restored the matter back to the disciplinary authority on 15-05-2013 with a direction to pass a fresh order in his case to dispose of the proceedings under Rule 19 of the CCS (CCA) Rules, 1965. Thereafter, the order of penalty of dismissal was imposed again upon him vide letter No.No.CIT/IX/Vig/2013-14/1670 dated 26-11-2013. Later on, the Applicant requested for payment of subsistence allowance for the period commencing 22-06-2004. However, according to the opinion received by them, no subsistence allowance was payable to him for the period 01-08-2009 to 26-11-2013. Accordingly, his request for payment of arrears of subsistence allowance for the period commencing 01.08.2009 was rejected.
8. The Respondents in their reply to this OA have also stated that the enhancement of subsistence allowance cannot be claimed as a matter of right but the decision regarding the same is at the discretion of the competent authority. They have further submitted that in a case like this, where the employee is caught red-handed in a trap case for a charge of corruption and deemed to have been placed under suspension by operation of law and subsequently dismissed, delay in conclusion of the trial or his being under suspension, in no way can be attributable to the department, rather it is ex-employee who has been instrumental in getting himself under deemed suspension and he could have avoided his suspension but for his criminal misconduct as well as misconduct in service rules. Further, according to them, the applicant is not entitled for any subsistence allowance for the period 01.08.2009 till 26.11.2013 or for any other period in view of the law declared by the Constitution Bench judgment of the Honble Supreme Court in Managing Director, ECIL Vs. B. Karunakaran, 1993 (4) SCC 727 wherein it has been held that if the disciplinary order is set aside by the Court of Law or in appeal, the reinstatement shall be only for the purposes of completing the disciplinary proceeding and the employee shall be deemed to have been placed under suspension. The same principle has been further reiterated by the Honble Supreme Court in the case of Union of India v. Y.S. Sandhu, 2008 (12) SCC 30 and U.P. State spinning Co. Ltd. V. R.S. Pandey, 2005(8) SCC 264.
9. As far as the claim of the applicant that the cheque for enhanced subsistence allowance was prepared but the same was not released to him, they have submitted that it was a wrong decision and against the law and when it came to the notice of the competent authority, it was reviewed and corrected. It is their further submission that at no point of time, the cheque amount was released to the applicant nor was he entitled for the same.
10. I have heard the learned counsels for the parties and perused the documents on records. The admitted position in this case is that the Applicant remained under suspension/under deemed suspension during the following period:
(1) 07.09.1994 to 06.02.2003 (deemed suspension due to his arrest in the criminal case on 07.09.1994).
(2) 22.03.2004 to 26.11.2013 (The Applicants dismissal w.e.f. 31.07.2009 was set aside by the Honble High Court on 07.09.2012 with the direction to treat the in between period as suspension. Dismissed again on 28.09.2012 but Appellate Authority set aside it on 15.05.2013. Again, the period from 28.09.2012 to 15.05.2013 to be treated as suspension.
Again dismissed on 26.11.2013.
Again the period from 15.05.2013 to 26.11.2013 to be treated as period of suspension).
11. Therefore, the entitlement of the Applicant for subsistence allowance from 07.09.1994 to 06.02.2003 and from 22.03.2004 to 26.11.2013 cannot be denied at any cost. Therefore, the contention of the Respondents that the Applicant was not entitled for the subsistence allowance during any period during the aforesaid two spells of suspension is not tenable as the master servant relationship between the Respondent and the Applicant did not cease to exist till he was finally dismissed from service on 26.11.2013. Now, the question is enhancement of subsistence allowance. The Respondents themselves enhanced his subsistence allowance for the period from 22.06.2004 to 31.07.2009 and from 01.08.2009 to 28.09.2012 to 75% of his pay. However, they, later on, decided not to enhance the subsistence allowance and the payment of arrears proposed to be made was withdrawn.
12. The entitlements of the suspended employee are provided in Fundamental Rules No.53, relevant part of which is reproduced as under:-
F.R. 53. (1) A Government servant under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments, namely:-
(i) in the case of a Commissioned Officer of the Indian Medical Department or a Warrant Officer in Civil employ who is liable to revert to military duty, the pay and allowance to which he would have been entitled had he been suspended while in military employment;
(ii) in the case of any other Government servant-
(a) a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on such leave salary:
Provided that where the period of suspension exceeds three months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:-
(i) the amount of subsistence allowance may be increased by a suitable amount; not exceeding 50% of the subsistence allowance admissible during the period of the first three months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the Government servant;
(ii) the amount of subsistence allowance may be reduce by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons to be recorded in writing, directly attributable to the Government servant;
(iii) the rate of Dearness Allowance will be based on the increased or, as the case may be, the decreased amount of subsistence allowance admissible under sub-clauses (i) and (ii) above.
(b) Any other compensatory allowances admissible from time to time on the basis of pay of which the Government servant was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances:
(2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation:
Provided that in the case of a Government servant dismissed, removed or compulsorily retired from service, who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement, under sub-rule (3) or sub-rule (4) of Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and who fails to produce such a certificate for any period or periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods, as the case may be, fall short of the amount of subsistence allowance and other allowances that would otherwise be admissible to him; where the subsistence allowance and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this proviso shall apply to him.
13. According to the aforesaid rule, the subsistence allowance is admissible to suspended employee for the first three months of suspension an amount equal to 50% of the pay plus dearness allowance. If the suspension period exceeds 3 months and in the opinion of the competent authority, the period of suspension has been prolonged for reasons not directly attributable to the Government servant, the subsistence allowance may be increased by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of the first three months. But the period of suspension is prolonged beyond three months due to reasons directly attributable to Government servant, the subsistence allowance can also be reduced by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of first 3 months. For this purpose, the competent authority has to record his reasons for doing so. It is seen that the Respondents have in fact considered the case of the Applicant and enhanced the subsistence allowance to 75% of the pay for the period from 22.06.2004 to 31.07.2009 and the period from 01.08.2009 to 28.09.2012 but the arrear, arising out of the enhancement was not disbursed to him holding that the said decision was taken wrongly.
14. In view of the above position, I am of the considered view that the Applicant was entitled to be considered for the enhanced subsistence allowance from 07.12.1994 i.e. after 3 months from the initial date of suspension till his re-instatement in service, i.e. 06.02.2003. Again, he was entitled to be considered for enhanced subsistence allowance from 22.06.2004 to 26.11.2013. In fact the Respondents had decided to increase the subsistence allowance of the Applicant w.e.f. 22.06.2004 i.e. after the expiry of the initial period of suspension for three months from 22.03.2004 and from 28.09.2012 to 15.05.2013 as his continued suspension was in no way attributable to him. However, they did not implement their own decision considering the gravity of the criminal case pending against him whereas, in terms of the provisions contained in FR 53, the gravity of the offence committed by the Government servant is not the criterion for enhancing or decreasing the subsistence allowance from 50% of the pay. The only criterion for enhancement or reduction is whether the prolongation of suspension is for the reasons attributable to the Government servant or not. It was on this criterion alone the competent authority was required to take its decision. But from the facts of this case, it is seen that the Respondents themselves do not have the case that the prolongation of the suspension period was attributable to the Applicant.
15. It is also a settled law that the Government servants under suspension is entitled to draw the annual increments during the suspension period and the subsistence allowance shall also be periodically increased accordingly. As laid down by the Apex Court in Khem Chand vs. Union of India, AIR 1963 SC 687, the effect of an order of suspension is that a Government servant is not permitted to work but he continues to be a member of the service. In Mritunjai Singh vs. State of U.P. and others, 1971 (2) SLR 523, the Allahabad High Court held that when a government servant was under suspension and as the contract of service of the employee contravenes though he was under suspension, increment should be allowed ordinarily to be drawn unless it is withheld and the subsistence allowance had to be calculated accordingly. A Coordinate Bench of this Tribunal in OA-1056/2008 P.C.Misra vs. Union of India & Ors. decided on 7.11.2008 has also held that there was no reason as to why the increment due to the applicant therein was not released during the period of suspension. The Honble High Court of Delhi in WP(C) No.9042/2009 decided on 15.2.2010 has also upheld the aforesaid order of this Tribunal. Relevant part of the said judgment reads as under:
In the circumstances and taking into consideration all the facts and circumstances, this court does not find any illegality or irregularity in the order of the Tribunal which is impugned before us by the petitioner. There are no grounds to interfere with the order of the Tribunal in the facts and circumstances in exercise of jurisdiction under article 226 of Constitution of India. The writ petition in the facts and circumstances is, therefore, without merit and it is dismissed. Parties are however, left to bear their own costs. Again in OA -1056/2010 Saranjit Singh, SREO (Retd.) vs. Director Employment, this Tribunal held that withholding of increment is a minor penalty and in the absence of such an order by the competent authority, the increments which are payable to an employee on year to year basis cannot be withheld. The relevant part of the said order reads as under:
4. We have heard the learned counsel for the parties. We agree with the counsel for applicant that withholding of increment is a minor penalty and in the absence of such an order by the competent authority, the increments which are payable to an employee on year to year basis cannot be withheld. We do not find any support for the argument of the respondents that the releasing of increments under FR 24 is subject to the provisions contained in FRs 26, 53 & 54 as this Tribunal has already taken a view in this matter in OA-1056/2008 (supra) and the said view has already been upheld by the High Court in its judgment dated 15.2.2010 in WP (C) No.9042/2009 (supra). We are, therefore, of the considered view that applicant is entitled to the reliefs sought by him. Accordingly, we allow this OA and direct the respondents to release all the increments which have fallen due during the period of his suspension as provided under FR 54 for the purpose of computing his subsistence allowance. The respondents shall work out the arrears thus payable to the applicant in terms of the aforesaid directions and the same shall be paid to him within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
16. I, in the above facts and circumstances of the case, allow this OA and set aside the impugned order dated 28.01.2014. I further direct the Respondents to re-consider the case of the Applicant in the light of the above observations and enhance the subsistence allowance paid/payable to the Applicant for the period from 07.09.1994 to 06.02.2003 and from 22.03.2004 to 26.11.2013 suitably in terms of the provisions contained in FR-53 and the arrears arising thereof be paid to him with 9% interest. He shall also be granted the annual increments arisen during the periods of his suspension and they shall also be taken into consideration while computing his subsistence/enhanced subsistence allowance and interest. He shall also be furnished with a detailed calculation sheet in the matter.
17. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( G. George Paracken ) Member (J) /vb/